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Justice Department withdraws another demand for Apple's help

| Saturday, April 23, 2016, 11:00 p.m.

For the second time in less than a month, the Justice Department has backed off using the courts to force Apple to help it gain access to a locked iPhone in an investigation.

On Friday, it told a federal court in Brooklyn that it no longer needs Apple's help in pulling data from a drug dealer's iPhone after someone came forward with a passcode.

In California, 3 12 weeks ago, the government abandoned a bid to compel Apple's assistance in helping unlock a terrorist's iPhone after a third party sold the FBI a method to crack the device.

In both cases, the government had asserted Apple was the only entity that could provide the technical assistance.

Legal analysts and industry lawyers are divided on whether the discovery of alternatives undermines the Justice Department's case in seeking similar court orders in the future.

“It's going to be a much tougher putt for the government the next time this happens,” said Craig A. Newman, a partner at Patterson Belknap who chairs the firm's data privacy group. “The Justice Department has now shown that workarounds exist without forcing Apple to break into its own devices. Intentionally or not, the bar just got higher and the government will be hard-pressed to argue again that Apple is its only alternative.”

But Michael Sussmann, a partner at Perkins Coie who represents tech firms, disagreed. “There will be phones the government just can't gain access to, and they'll be able to say truthfully, ‘We need the data and we have no way to access it,' ” he said. “The fact that in these two cases they found a way in or got lucky won't change that.”

Nonetheless, said Ira Rubinstein, a senior fellow at New York University School of Law's Information Law Institute, “In future cases, the government may have to show it has exhausted alternative methods of breaking into a locked device.”

Rubinstein, former associate general counsel at Microsoft, added that the court may wish to hear from independent security researchers before deciding whether to compel an unwilling firm to provide assistance.

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